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Suppose that when a criminal defendant appears in court, he is advised of the right to have counsel appointed if indigent, tells the judge he wants to hire his own lawyer, and signs a written waiver of his right to appointed counsel. When the defendant next appears in court, he does not have a lawyer. May the judge rely on the waiver of appointed counsel to require the defendant to proceed, without inquiring whether the defendant wants the assistance of counsel?

Several superior court cases involving this type of situation—most recently, State v. Blakeney, ___ N.C. App. ___, 782 S.E.2d 88 (Feb. 16, 2016)—have reached the North Carolina appellate courts. The outcome is familiar: conviction reversed if the superior court judge required the defendant to represent himself without making a further inquiry. The reason is also familiar: a waiver of appointed counsel does not constitute a waiver of the right to the assistance of all counsel. If a defendant appears without a lawyer after waiving the right to appointed counsel, the judge ordinarily must inquire whether the defendant wishes to proceed without counsel and, if so, obtain a waiver of the assistance of all counsel. See, e.g., State v. McCrowre, 312 N.C. 478 (1984).

The same constitutional principles apply to cases resolved in district court, but those cases rarely make it to the appellate courts. A recent opinion by the North Carolina Judicial Standards Commission recognizes that district courts must follow these principles and willfully failing to do so violates the North Carolina Code of Judicial Conduct. In Formal Advisory Opinion 2015-02 (Nov. 9, 2015), the Commission wrote:

Except in situations where the defendant’s actions amount to a forfeiture of the right to counsel, a judge may not require a criminal defendant entitled to counsel to proceed without the assistance of counsel based on a waiver of appointed counsel only. It is the judge’s responsibility to clarify the scope of any waiver.

The Commission found “an alarming practice” among some district court judges to treat an indigent defendant’s waiver of appointed counsel as a waiver of the right to the assistance of all counsel—appointed or privately retained. In other words, the Commission found that some judges improperly “treat a waiver as a waiver.”

The opinion indicates that the Commission understood the circumstances in which this issue commonly arises. It recognized that a defendant’s waiver of appointed counsel is “often coupled with an expressed intent to hire one’s own attorney.”

In this situation, “a judge has a legal and ethical obligation not to presume that there has been a waiver of all counsel by anything less than an express indication of such an intention.” The judge must make a “thorough inquiry” of the defendant.

The Commission distinguished waivers from forfeitures, recognizing that in some instances a criminal defendant may forfeit the right counsel. A forfeiture requires “a defendant’s own misconduct of intentional and unreasonable delay and other unacceptable actions.”

How should district court judges proceed if a defendant waives appointed counsel and subsequently appears without counsel? The Commission’s opinion does not mandate specific procedures. Case law and statutes suggest the following approach. This discussion is not meant to foreclose other procedures to implement the right to counsel.

If the defendant waives assigned counsel and subsequently appears without counsel, the judge should inquire whether the defendant wishes to proceed without counsel. As part of this inquiry, the judge should satisfy himself or herself that the defendant understands his right to counsel, the consequences of his decision, and the charges, proceedings, and potential punishment. See G.S. 15A-1242 (describing required components of inquiry).

If the defendant then indicates that he wants to represent himself and proceed without counsel, the judge should direct the defendant to execute a waiver of assistance of all counsel. The AOC form for waiving counsel, AOC-CR-227 (Oct. 2015), contains two check boxes, one for waiving assigned counsel and the other for waiving the assistance of all counsel. If the defendant previously executed a waiver form and only checked the box for waiving assigned counsel, the defendant should execute a second form checking the box to waive the assistance of all counsel. When a defendant executes a written waiver of counsel, the appellate courts presume that the waiver was proper—that it was knowing, intelligent, and voluntary—unless other evidence indicates that it was not. See State v. Kinlock, 152 N.C. App. 84, 89–90 (2002), aff’d per curiam, 357 N.C. 48 (2003).

If the defendant indicates instead that he wants counsel to be appointed, the judge should consider whether to allow the defendant to withdraw his previous waiver of assigned counsel. The burden on the defendant is minimal, particularly early in the proceedings. Some cases suggest that the defendant need only express that he has changed his mind. See State v. Sexton, 141 N.C. App. 344, 346–47 (2000) (requiring that defendant show a change of desire). Other cases indicate that the defendant also must show some good cause, but the threshold is low. See, e.g., State v. Scott, 187 N.C. App. 775, 778 (2007) (trial court erred in denying defendant’s request to withdraw waiver of appointed counsel where defendant said he didn’t know hiring counsel would cost “that much”). The cases suggest that a defendant lacks good cause to withdraw a waiver of counsel if his conduct amounts to a forfeiture of the right to counsel, discussed below.

If the defendant indicates that he needs more time to hire counsel, the judge should consider whether to grant a continuance. For example, the defendant may have located an attorney, but he may not have made financial arrangements to retain the attorney. Generally, whether to grant a continuance is within the judge’s discretion. Denial of a continuance, however, may effectively deprive the defendant of the right to be represented by counsel. As with requests to withdraw a waiver of assigned counsel, judges should consider the standards for forfeiture in ruling on requests for more time to hire counsel. See Sampley v. Attorney General of North Carolina, 786 F.2d 610, 613 (4th Cir. 1986) (stating that court should consider whether continuance request “results from the lack of a fair opportunity to secure counsel or rather from the defendant’s unjustifiable failure to avail himself of an opportunity fairly given”); see also Jessica Smith, Counsel Issues at 2, in North Carolina Superior Court Judges’ Benchbook (UNC Sch. of Gov., Jan. 2010) (advising superior court judges that “[i]f the defendant repeatedly fails to obtain counsel after having waived only the right to assigned counsel, you may consider whether the defendant has forfeited the right to assistance of counsel”).

If the defendant has engaged in unreasonable delay or other misconduct, the judge may consider whether the defendant has forfeited the right to counsel. The Judicial Standards Commission stated that its opinion should not be interpreted “to imply that a judge’s reasonable declaration of a defendant’s forfeiture of the right to counsel will be considered misconduct.”

The standards for forfeiture of counsel are strict in superior court cases. “The N.C. appellate courts have warned that judges must engage every reasonable presumption against forfeiture of the right to counsel.” Smith, Counsel Issues at 4; see also State v. Blakeney, Sl. Op. at 14–16, 782 S.E.2d at 94–95 (reviewing cases). Few cases address the application of forfeiture standards in district court. The time frames are often shorter and the charges less serious than in superior court. Still, as in superior court, criminal convictions in district court have lasting consequences, and the Commission recognized the “fundamental nature of the right to counsel.”

In Sampley, a case involving misdemeanor charges, the Fourth Circuit Court of Appeals denied the defendant’s habeas corpus petition, which alleged that the state trial court violated his Sixth Amendment right to counsel by denying his request for a continuance to hire new counsel. There, the trial court granted two continuances, totaling about a month, for the defendant to obtain new counsel after the defendant’s original counsel withdrew. Considerable time had already passed before the trial court denied a further continuance, however. The defendant was charged in June 1981 and, after the proceedings in district court, was tried in superior court in October 1981, which resulted in a hung jury. The case was calendared for retrial in November 1981 but was continued three times, once at the defendant’s request, until February 1982 when the defendant’s original counsel moved to withdraw. It was at that point that the superior court granted two additional continuances for the defendant to obtain new counsel. The Fourth Circuit found that a further continuance would have resulted in “more than ordinary inconvenience to the state,” 786 F.2d at 615, and deferred to the state court rulings. Even then, a dissenting judge would have granted the defendant’s habeas petition, finding that the circumstances surrounding the denial of the last request for a continuance presented “a picture of unseemly haste.” Id. at 618. See also generally State v. Leyshon, 211 N.C. App. 511, 514–19 (2011) (finding that defendant obstructed and delayed proceedings in superior court and forfeited counsel on charge of driving while license revoked).

If a district court judge concludes that the defendant has forfeited the right to counsel, the judge should make findings of fact about the conduct and other circumstances supporting his conclusion. Without findings, the limited record in district court may suggest that the defendant was improperly required to proceed without counsel if the AOC form indicates that he waived assigned counsel only.